Mallon v Southern Cross Care (NSW & Act)

[2021] NSWPIC 434

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Mallon v Southern Cross Care (NSW & ACT) and ors [2021] NSWPIC 434

APPLICANT:

Kim Narelle Mallon

FIRST RESPONDENT:

Southern Cross Care (NSW & ACT)

SECOND RESPONDENT:

Clinical Laboratories Pty Limited

MEMBER:

Anthony Scarcella

DATE OF DECISION:

27 October 2021

CATCHWORDS:

WORKERS COMPENSATION - Claim for weekly benefits, medical and related expenses and permanent impairment compensation; first respondent accepted injury to the lumbar spine as a result of a series of frank lifting incidents; whether the applicant suffered an injury to her lumbar spine with the first respondent as a result of the nature and conditions of her employment during two distinct periods; whether the applicant suffered an injury to her lumbar spine with the second respondent as a result of the nature and conditions of her employment and/or an aggravation, acceleration, exacerbation or deterioration of a disease process; Department of Education and Training v Ireland, Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales, Kennedy Cleaning Services Pty Ltd v Petkoska, Military Rehabilitation and Compensation Commission v May, Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NSW TAFE Commission, State Transit Authority v El-Achi and AB v AW considered and applied; Carr v State of New South Wales (Mid North Coast Local Health District),The State Government Insurance Commission v Oakley, Secretary, New South Wales Department of Education v Johnson and Ozcan v Macarthur Disability Services Ltd considered; Held – the applicant suffered an injury to the lumbar spine arising out of or in the course of her employment with the first respondent on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the Workers Compensation Act (1987 Act); the applicant did not suffer an injury to the lumbar spine arising out of or in the course of her employment with the first respondent between 2004 and 2006 and between 2008 and 10 April 2012 from duties involving constant heavy and repetitive bending, lifting, carrying, twisting, turning, pushing and pulling within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the applicant did not suffer an injury to the lumbar spine arising out of or in the course of her employment with the second respondent on 24 June 2016 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the1987 Act; matter remitted to the President for referral to a Medical Assessor for assessment under the 1998 Act; following the issue of a Medical Assessment Certificate by a Medical Assessor, the matter is to be listed for a teleconference in respect of the outstanding issues regarding the applicant’s entitlement to weekly compensation and reasonably necessary medical and related expenses as a result of injury under the1987 Act.

DETERMINATIONS MADE:

1.     The applicant suffered an injury to the lumbar spine arising out of or in the course of her employment with the first respondent on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the Workers Compensation Act 1987.

2.     The applicant did not suffer an injury to the lumbar spine arising out of or in the course of her employment with the first respondent between 2004 and 2006 and between 2008 and 10 April 2012 from duties involving constant heavy and repetitive bending, lifting, carrying, twisting, turning, pushing and pulling within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the Workers Compensation Act 1987.

3.     The applicant did not suffer an injury to the lumbar spine arising out of or in the course of her employment with the second respondent on 24 June 2016 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the Workers Compensation Act 1987.

ORDERS MADE: 

4.     Award for the first respondent in respect of the applicant’s claimed injury to the lumbar spine between 2004 and 2006 and between 2008 and 10 April 2012.

5.     Award for the second respondent in respect of the applicant’s claimed injury to the lumbar spine on 24 June 2016.

6.     The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows:

Dates of injury:  31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012.

Body System:  the spine (lumbar spine) and the skin (scarring – TEMSKI).

Method of Assessment:        Whole Person Impairment.

7.     The following documents are to be provided to the Medical Assessor:

(a)    Application to Resolve a Dispute dated 6 July 2021 and attached documents;

(b)    Reply of the first respondent dated 28 July 2021 and attached documents;

(c)    Reply of the second respondent dated 28 July 2021 and attached documents, and

(d)    Certificate of Determination and Statement of Reasons.

8.     Following the issue of a Medical Assessment Certificate by a Medical Assessor, the matter is to be listed for a teleconference before me in respect of the outstanding issues regarding the applicant’s entitlement to weekly compensation and reasonably necessary medical and related expenses as a result of injury under the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Ms Kim Narelle Mallon, is a 55-year-old woman who was employed by the first respondent, Southern Cross Care (NSW & ACT) (Southern Cross Care), between about 2004 and 2006, initially, as an assistant in nursing and subsequently, as an assistant in nursing and a cook. Ms Mallon returned to Southern Cross Care as a cook between about 2008 and 10 April 2012.

2. Ms Mallon alleged that she sustained an injury to her lower back arising out of or in the course of her employment with Southern Cross Care in a series of incidents on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012. In addition, she alleged that she sustained an injury to her lower back arising out of duties involving constant heavy and repetitive bending, lifting, carrying, twisting, turning, pushing and pulling in her employment with Southern Cross Care between 2004 and 2006 and again, between 2008 and 10 April 2012.

3. Ms Mallon was employed by the second respondent, Clinical Laboratories Pty Limited (Clinical Laboratories), between about 20 January 2014 and 28 June 2016 as a blood collector. Ms Mallon alleged injury to her lower back arising out of duties that involved standing in a hunched position for lengthy periods of time and having to travel lengthy distances between her places of work in the course of her employment with Clinical Laboratories on 24 June 2016.

4. On 12 March 2013, CCI issued a Dispute Notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) alleging that Ms Mallon had recovered from the effects of her alleged injuries; that any disability, incapacity and/or requirement for treatment was due to non-work-related conditions and/or events; that there was no entitlement to weekly payments of compensation; and that there was no entitlement to the payment of medical and related treatment expenses. The Dispute Notice referred to the dates of injury as being 19 December 2011, 31 January 2012 and 1 February 2012.

5. On 15 April 2014, a Medical Assessment Certificate (MAC) was issued by Approved Medical Specialist, Dr Roger Pillemer in the former Workers Compensation Commission in respect of Ms Mallon’s lower back injury whilst employed by Southern Cross Care.[1] The nominated date of injury on the MAC was 31 January 2012. Many of the specific incidents referred to above in Ms Mallon’s employment with Southern Cross Care were referred to in the MAC.

   [1] Application to Resolve a Dispute at pages 141-151

6. Sometime in 2015, Ms Mallon lodged a claim for workers compensation benefits under the Workers Compensation Act 1987 (the 1987 Act) with Catholic Church Insurance Limited (CCI), the insurer of Southern Cross Care.

7. On 11 November 2015, CCI issued a Dispute Notice under section 74 of the 1998 Act denying injury within the meaning of sections 4 and 9A of the 1987 Act; denying an entitlement to weekly benefits; denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of sections 59 and 60 of the 1987 Act; and denying an entitlement to lump sum compensation under section 66 of the 1987 Act. CCI also put the failure to give notice of injury and the failure to make a claim under sections 254 and 261 of the 1998 Act in issue.[2] The Dispute Notice referred to the dates of injury as being 19 December 2011, 31 January 2012, 1 February 2012 and the nature and conditions of employment.

   [2] Reply by Southern Cross Care at pages 208-224

8. On 2 May 2016, Ms Mallon underwent an L5/S1 microdiscectomy.

9. Sometime in 2016, Ms Mallon lodged a claim for workers compensation benefits under the 1987 Act with QBE Workers Compensation (NSW) Limited (QBE), the insurer of Clinical Laboratories.

10. On 13 July 2016, QBE issued a Dispute Notice under section 74 of the 1998 Act denying injury within the meaning of sections 4 and 9A of the 1987 Act. The Dispute Notice referred to the date of injury as 28 June 2016.

11. On 31 October 2016, Ms Mallon lodged a claim for weekly benefits and medical expenses under the 1987 Act with CCI.[3]

    [3] Application to Resolve a Dispute at pages 55-56

12. On 12 December 2016, CCI issued a Dispute Notice under section 74 of the 1998 Act denying injury within the meaning of sections 4 and 9A of the 1987 Act; denying an entitlement to weekly benefits; denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of sections 59 and 60 of the 1987 Act; denying the L5/S1 microdiscectomy performed on 2 May 2016 was reasonably necessary as a result of any alleged injury. CCI also put notice of injury in issue under sections 254 and 261 of the 1998 Act. The Dispute Notice referred to the dates of injury as being 30/31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012, 1 February 2012 and the nature and conditions of employment. CCI raised the issue as to whether Ms Mallon had suffered a subsequent injury at work on or about 28 June 2016 with another employer (Clinical Laboratories).

13. On 27 January 2017, Ms Mallon discontinued proceedings against Southern Cross Care in the former Workers Compensation Commission.[4]

    [4] Application to Resolve a Dispute at page 1

14. On 5 June 2017, Ms Mallon underwent an L4/5 laminectomy.

15. On 14 August 2017, Ms Mallon sought a review of the decision contained in CCI’s Dispute Notice dated 12 December 2016 under section 287A of the 1998 Act.[5]

    [5] Application to Resolve a Dispute at pages 57

16. On 14 August 2017, Ms Mallon sought a review of the decision contained in QBE’s Dispute Notice dated 13 July 2016.

17. On 28 August 2017, CCI issued a Review Notice under section 287A of the 1998 Act maintaining its decision to deny liability.[6]

    [6] Reply by Southern Cross Care at pages 231-240

18. On 23 October 2017, QBE issued a Review Notice under section 287A of the 1998 Act maintaining its decision to deny liability.[7]

    [7] Application to Resolve a Dispute at pages 69-76

19. On 29 April 2019, Ms Mallon underwent an L5/S1 foraminotomy.

20. On 5 March 2019, Ms Mallon sought a review of the decision contained in CCI’s Dispute Notice dated 28 August 2017 under section 287A of the 1998 Act.[8]

    [8] Application to Resolve a Dispute at page 77

21. On 5 March 2019, Ms Mallon sought a review of the decision contained in QBE’s Dispute Notice dated 23 October 2017 under section 287A of the 1998 Act.[9]

    [9] Application to Resolve a Dispute at page 78

22. On 15 July 2019, AAI Limited t/as GIO (GIO), having taken over from QBE, issued a Review Notice under section 287A of the 1998 Act maintaining GIO’s decision to deny liability.[10]

    [10] Application to Resolve a Dispute at pages 82-85

23. On 17 October 2019, Ms Mallon underwent and L5/S1 interbody fusion.

24. On 17 February 2020, Ms Mallon underwent a C5/6 anterior discectomy and fusion, which was not work-related.

25. On 20 October 2020, Ms Mallon discontinued proceedings against Southern Cross Care and Clinical Laboratories in the former Workers Compensation Commission.[11]

    [11] Application to Resolve a Dispute at pages 3-7

26. On 10 November 2020, Ms Mallon claimed permanent impairment compensation under section 66 of the 1987 Act in respect of her lumbar spine from Southern Cross Care and Clinical Laboratories.[12]

    [12] Application to Resolve a Dispute at pages 92-93

27. On 15 January 2021, GIO issued a Dispute Notice under section 78 of the 1998 Act denying liability in respect of Ms Mallon’s claim for permanent impairment compensation.[13]

    [13] Reply by Clinical Laboratories at pages 31-34

28. Ms Mallon lodged an Application to Resolve a Dispute (ARD) dated 6 July 2021 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming weekly compensation from 1 April 2016 to 5 July 2021 under sections 37 and 38 of the 1987 Act; medical and related expenses under section 60 of the 1987 Act; and lump sum compensation under section 66 of the 1987 Act as a result of the injury sustained in the course of her employment with Southern Cross Care on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012, 1 February 2012 and in respect of the nature and conditions of her employment between 2004 and 2006 and between 2008 and 10 April 2012; and as a result of the injury sustained in the course of her employment with Clinical Laboratories on 24 June 2016.

ISSUES FOR DETERMINATION

1. The parties agreed that the following issues remained in dispute:

(a)    whether Ms Mallon suffered an injury to her lumbar spine as a result of the nature and conditions of her employment with Southern Cross Care between 2004 and 2006 and again, between 2008 and 10 April 2012;

(b)    whether Ms Mallon suffered an injury to her lumbar spine in the course of her employment with Clinical Laboratories on 24 June 2016 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act;

(c)    whether Ms Mallon is entitled to weekly payments of compensation for total or partial incapacity within the meaning of section 33 of the 1987 Act arising from her alleged lumbar spine injury during the period claimed. If so, the extent and quantification of her entitlement to weekly payments of compensation within the meaning of the 1987 Act;

(d)    whether Ms Mallon’s medical and related treatment expenses are reasonably necessary as a result of injury within the meaning of sections 59 and 60 of the 1987 Act, and

(e)    whether Ms Mallon is entitled to lump sum compensation within the meaning of section 66 of the 1987 Act.

Matters previously notified as disputed

1. The issues in dispute were notified in the Dispute Notices referred to above.

Matters not previously notified

1. No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

1. The parties participated in a conciliation conference/arbitration by telephone on 2 September 2021. Mr Simon Hunt of counsel appeared for Ms Mallon instructed by Mr Peter Rogers, solicitor. Mr Thomas Murray, solicitor appeared for Southern Cross Care. Mr Luke Morgan of counsel appeared for Clinical Laboratories instructed by Ms Naomi Tancred, solicitor.

2. During the conciliation phase, Southern Cross Care clarified that it did not dispute the frank injuries pleaded in the ARD but disputed the pleaded nature and conditions claim during the periods 2004 and 2006 and again between 2008 and 10 April 2012.

3. During the conciliation phase, the parties agreed that once the disputed injuries have been determined, there will be a referral to a Medical Assessor to determine permanent impairment in respect of the spine (lumbar spine), the skin (scarring – TEMSKI) and any apportionment. The claim for weekly benefits will be referred back to me for a teleconference once a MAC has issued.

4. I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD dated 6 July 2021 and attached documents;

(b)    Reply by Southern Cross Care dated 28 July 2021 and attached documents, and

(c)    Reply by Clinical Laboratories dated 28 July 2021 and attached documents.

Oral Evidence

1. Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Kim Narelle Mallon’s evidence

1. In evidence, there is a statement by Ms Mallon dated 29 April 2016.[14] I will now refer to the relevant parts of that statement.

   [14] ARD at pages 8-16

2. Ms Mallon stated that she commenced employment with Southern Cross Care in about 2004 as an Assistant in Nursing (AIN) at their Naria Village Nursing Home in Belmont. After about 18 months, she transferred to Southern Cross Care’s Tenison Apartments at Swansea, where she worked as an AIN and cook until about early 2006.

3. Ms Mallon stated that, on 31 October 2005, she injured her lower back whilst lifting garbage bags so that she could vacuum around and underneath them. She was uncertain as to whether she was certified unfit for work or whether she continued to work on restricted duties for a couple of weeks. She was reasonably confident that she did not make a claim and took sick leave. She did not recall whether she underwent an x-ray and/or a CT scan of her lower back. She recalled undergoing physiotherapy and that her symptoms resolved by about early to mid-2006. However, later in her statement, she stated that her symptoms settled after only a few visits to the physiotherapist.

4. In the ARD, Ms Mallon alleged that she sustained an injury to her lower back whilst vacuuming in the course of her employment with Southern Cross Care on 10 February 2006. She made no reference to this incident in her statement dated 29 April 2016. However, the CCI Notice of Injury Form dated 17 February 2006 referred to her having sustained lower back pain whilst lifting.[15] Despite this inconsistency, it is of no consequence as Southern Cross Care did not dispute the frank injuries pleaded in the ARD.

   [15] ARD at page 28

5. Ms Mallon stated that between about 2006 and 2008, she was employed by Douglas Hanly Moir as a blood collector. She provided no description of the physical aspects of her duties with Douglas Hanly Moir.

6. Ms Mallon stated that in about 2008 she returned to work as a cook with Southern Cross Care at the Tenison Apartments at Swansea. Soon after returning to Southern Cross Care, she accepted a transfer to its Caves Beach facility as a cook, where she cooked and prepared meals for about 80 residents residing in the facility and their guests and visitors. She described the work as physically arduous and involved constant heavy and repetitive lifting, bending, pushing, pulling, working in awkward positions, twisting, turning and moving generally. Ms Mallon stated that she raised concerns with Southern Cross Care about her ability to perform the work because she thought it was really a 1.5 to 2 person job. She was promised a kitchen assistant but one was never provided.

7. Ms Mallon stated that in the lead-up to Christmas in 2011, the demands on her in the workplace increased because there were more visitors and guests at the Caves Beach facility. She was performing more work at a quicker pace as a cook without any assistance. On or about 19 December 2011, she was lifting a box containing several two litre bottles of lemonade for the purpose of taking it into the cool room, when she experienced pain in her lower back and buttock region, especially on the left side. She attempted to continue working but was unable to do so because the pain persisted. She notified her employer of the injury and completed a claim form. Ms Mallon believed that she may have had two or three days off work, after which her symptoms improved slightly but did not resolve. She felt compelled to return to work because it was her responsibility to feed the patients in the facility. She returned to work despite the significant pain in her lower back and continued working under sufferance.

1. Ms Mallon stated that prior to the incident on 19 December 2011, at the end of a day’s work with Southern Cross Care, she performed light stretches, took pain relieving medication in the form of Lyrica, Endone and Panadeine Forte and rested.

2. Ms Mallon stated that following the incident on 19 December 2011, she underwent physiotherapy; underwent gymnasium based strengthening exercise programs; underwent radiological investigations; consulted neurologists; and continued to take medication.

3. Ms Mallon stated that by late 2011, she was suffering from psychological symptoms which deteriorated following the incident on 19 December 2011. As a result, she was certified unfit for work due to anxiety and depression arising from workplace stress between 12 January 2012 and 30 January 2012.

4. Ms Mallon stated that she returned to her usual duties with Southern Cross Care on about 30 January 2012, despite having been certified fit to return to work on suitable duties. On 31 January 2012, she took out a bag of garbage when she felt her lower back and left leg pain worsen. She went back to work and found it difficult coping.

5. Ms Mallon stated that, on 1 February 2012, she went to lift a 10 kg bag of potatoes when she felt her lower back and left leg pain worsen further. She consulted her general practitioner, who referred her for x-rays and physiotherapy. She was certified unfit for work until 15 February 2012. She attempted to return to work in mid to late February 2012 or March 2012 on her usual duties. However, as the work was so physically demanding, as time passed, her symptoms gradually deteriorated and the work became difficult for her.

6. Ms Mallon stated that her symptoms became so bad that, on 28 March 2012, she attended the Belmont District Hospital Emergency Department, where she underwent x-rays and was prescribed medication before being referred back to her general practitioner, who referred her for physiotherapy. The general practitioner issued her with a certificate certifying her fit for suitable duties at seven hours per day, five days per week with a 3 kg lifting restriction and hourly breaks. Southern Cross Care were unable to provide her with any light work and she did not work for them again.

7. Ms Mallon was of the opinion that the nature and conditions of her employment with Southern Cross Care as a cook referred to above either caused or aggravated her orthopaedic and psychological symptoms.

8. Ms Mallon stated that she received weekly payments of compensation from CCI until liability was declined on 26 March 2013.

9. Ms Mallon stated that, although her symptoms had been debilitating and significantly affected her ability to work, she was actively seeking further employment even whilst she was in receipt of weekly payments of compensation.

10. Ms Mallon stated that she subsequently obtained employment with Specialist Diagnostic Services Pty Limited t/as Laverty Pathology (Laverty) as a casual blood collector. Later, she was employed on a permanent part-time basis. She described the work as sedentary. She took blood from patients as they came into the facility. Despite the work being sedentary, she continued to experience ongoing symptoms in her lower back radiating into her left buttock and left leg. The symptoms did not usually worsen whilst performing those duties. However, if the symptoms were aggravated, they settled to the same point as they had been since she ceased employment with Southern Cross Care. She frequently experienced difficulty getting to work because of her lower back symptoms and took numerous days off work as sick days, using all her annual leave and sick leave. Apart from broadly referring to her lower back symptoms, Ms Mallon did not explain in this statement what aspect of getting to work caused her to experience difficulties.

11. Ms Mallon stated that she ceased work with Laverty on about 14 January 2014 and commenced employment with Clinical Laboratories as a blood collector on 20 January 2014, performing essentially the same duties as she had with Laverty. Although the work was largely sedentary, she experienced difficulties getting to work because of her lower back symptoms. Once again, apart from broadly referring to her lower back symptoms, Ms Mallon did not explain in this statement what aspect of getting to work caused her to experience difficulties.

12. Ms Mallon stated that, in June 2014, she was referred to a neurologist, Dr Richard Ferch, who recommended that she undergo a CT-guided perineural injection. She did so on 29 September 2014 but the procedure did not provide her with any ongoing relief. Dr Ferch recommended that she consider surgery to her lower back and obtain a second opinion in this regard.

13. Ms Mallon stated that, in about September 2014, the left leg symptoms worsened and she took about three weeks off work. She was unable to say what caused the deterioration but made the point that she had not suffered any further injury or aggravation in the course of her employment with Clinical Laboratories. She expressed the opinion that she believed the deterioration was a general progression of her symptoms resulting from the injuries she sustained in the course of her employment with Southern Cross Care.

14. Ms Mallon stated that, in early 2015, she consulted another neurosurgeon, Dr Peter Spittaler, with whom she discussed lower back surgery. Dr Spittaler recommended that she undergo an MRI scan of the lumbar spine before making a final recommendation about surgery. After undergoing the MRI scan, she again consulted Dr Spittaler, who advised that it was likely that she was experiencing nerve root irritation in her lower back and recommended a transforaminal steroid injection. If the injection was unsuccessful, he recommended she attend a pain clinic. Ms Mallon stated that the transforaminal steroid injection failed to provide any lasting relief. She did not attend a pain clinic. Instead, she continued medicating with Panadeine Forte, Endone and Lyrica to manage her symptoms.

15. Ms Mallon stated that, in early 2016, Dr Spittaler referred her for a further MRI scan of her lumbar spine. In March 2016, after reviewing the MRI scan, Dr Spittaler recommended she undergo an L5/S1 microdiscectomy. Ms Mallon elected to go ahead with the surgical procedure recommended by Dr Spittaler. She also stated that Clinical Laboratories informed her that when she was fit to return to work, she would be able to resume her usual duties. She expressed some concern that she would not improve sufficiently enough to return to such duties.

16. Ms Mallon stated that, shortly prior to providing her statement dated 29 April 2016, Clinical Laboratories notified her that her performance was going to be managed because of her frequent absenteeism and difficulties getting to work.

17. Ms Mallon provided a comprehensive list of her current symptoms and how those symptoms affected her activities of daily living.

18. In evidence, there is a further statement by Ms Mallon dated 28 September 2017.[16] I will now refer to the relevant parts of that statement.

    [16] ARD at pages 17-21

19. Ms Mallon stated that, on 2 May 2016, she underwent an L5/S1 microdiscectomy performed by Dr Spittaler. She returned to work with Clinical Laboratories in late May or early June 2016 because she thought she had progressed well following surgery and because she had no income and was struggling financially.

20. Ms Mallon stated that, when she returned to work for Clinical Laboratories, she was sent to work at a different location on the Central Coast and it resulted in her travelling a longer distance by car. She recalled her lower back being very sore, stiff and uncomfortable after the additional travel time but she persevered because she needed the income. The nature of her work was similar to the work she was performing before the surgery. She became aware that her back pain worsened as each shift progressed because of being unable to sit or stand when she needed to and because she was not provided with a stool to sit on when taking pathology samples. She noted, in hindsight, that she was spending a lot of time hunched-over taking pathology samples frequently throughout the day. For all of those reasons, she found herself struggling to perform her duties.

21. Ms Mallon stated that, by late June 2016, she felt unable to continue performing her duties at work. She consulted her general practitioner, Dr Sandra Fisher, who certified her unfit for work. On about 8 July 2016, she submitted an injury report form with Clinical Laboratories.

22. Ms Mallon stated that she would have assumed that any liability for her injuries would be the responsibility of the insurer for Southern Cross Care. She did not properly appreciate the significance of her duties with Clinical Laboratories or the effect that those duties had on the aggravation of her symptoms, particularly, in the period after she returned to work following surgery in May/June 2016 to 28 June 2016. On reflection, Ms Mallon felt that her symptoms worsened significantly whilst performing her duties with Clinical Laboratories during the latter mentioned period. Ms Mallon stated that she had not returned to work since 28 June 2016.

23. Ms Mallon stated that since 28 June 2016, she continued to periodically consult Dr Fisher and Dr Spittaler. Due to the persistence and extent of her symptoms, she reluctantly agreed to undergo an L4/5 laminectomy on the recommendation of Dr Spittaler. She underwent the surgery on either 5 June 2017 or 6 June 2017. At the time of making her statement, her symptoms remained severe and she regretted having undergone the surgery.

24. Ms Mallon provided a comprehensive list of her current symptoms, explained how those symptoms affected her activities of daily living and how those symptoms limited her return to work.

25. In evidence, there is a further statement by Ms Mallon dated 9 July 2018.[17] I will now refer to the relevant parts of that statement.

    [17] ARD at pages 22-24

26. Ms Mallon stated that, on 5 June 2017, she underwent an L4/5 laminectomy performed by Dr Spittaler. Since the surgery, she had experienced severe lower back pain and an unusual sensation in her lower back. There was an improvement in her leg pain but it was still present and, at times, it was so bad that she found it difficult to stand or sit. She managed her symptoms with painkilling medication.

27. Ms Mallon stated that since undergoing the L4/5 laminectomy, she had experienced three instances where she had awoken in the morning with severe pain, tingling and numbness in both legs and around her vagina and backside. Despite the sensation of numbness in those areas, they were also extremely sensitive. She also experienced an uncomfortable sensation with urination and on bowel movements. Following a steroid injection, the symptoms in the three instances referred to above resolved almost immediately and she had not experienced them since.

28. Ms Mallon provided a comprehensive list of her current symptoms.

29. In evidence, there was an unsigned further statement by Ms Mallon dated 3 April 2020.[18] At my direction, a signed copy was uploaded to the Commission’s portal after the arbitration hearing. I will now refer to the relevant parts of that statement.

    [18] ARD at pages 25-26

30. Ms Mallon stated that, after undergoing the L4/5 laminectomy, she was referred to the Hunter Pain Clinic for treatment due to her persisting symptoms. She continued to consult a general practitioner, Dr Laura Heal and Dr Spittaler. In February 2019, she was referred for an MRI scan of her lower back, discussed the findings with Dr Spittaler and he recommended further surgery.

31. Ms Mallon stated that, on 29 April 2019, she underwent a repeat L5/S1 foraminotomy performed by Dr Spittaler. She noted a significant improvement in her lower back pain. However, in about late June or early July 2019, her sciatic pain returned. Dr Spittaler discussed further surgery with her and performed and L5/S1 interbody fusion on 17 October 2019. The procedure provided some relief from the sciatic pain.

32. Ms Mallon stated that she continued to experience severe symptoms in her lower back and symptoms in her left leg.

33. Ms Mallon stated that, on 17 February 2020, she underwent a C5/6 anterior discectomy and fusion performed by Dr Spittaler. The cervical spine and right shoulder conditions were not work-related.

34. Ms Mallon stated that she continues under the care of her general practitioner and Dr Spittaler.

35. There are no recent statements in evidence from Ms Mallon.

The treating medical evidence

1. There is no medical evidence in respect of any treatment or medical imaging relating to the injury to Ms Mallon’s lower back whilst employed by Southern Cross Care on 31 October 2005.

2. In evidence, there is a WorkCover medical certificate issued by Dr Paul Karen, a general practitioner of Belmont, dated 18 February 2006.[19] Dr Karen recorded the injury as having occurred whilst lifting garbage in a kitchen and vacuuming on 30 October 2005. Dr Karen’s diagnosis was one of lower back (muscular) pain and opined that employment was a substantial contributing factor to this injury. Dr Karen’s management plan included referral for an x-ray, CT scan and physiotherapy. He certified Ms Mallon unfit for work from 17 February 2006 to 24 February 2006 and fit for suitable duties from 24 February 2006 to 6 March 2006 without repetitive sitting, walking or standing; no recurrent bending or lifting; and only light duties in an office. If Ms Mallon underwent an x-ray or CT scan of her lumbar spine, reports relating to such medical imaging were not in evidence.

   [19] Reply by Southern Cross Care at page 117

3. In evidence, there is a WorkCover medical certificate issued by a doctor, whose name was illegible, at Health Services Australia Limited in Newcastle dated 24 February 2006.[20] The doctor recorded the injury as having occurred on 10 February 2006 whilst lifting a garbage bin. The doctor diagnosed acute low back pain and opined that employment was a substantial contributing factor to this injury. The doctor’s management plan included referral for physiotherapy, back care and education and a revision of manual handling. The doctor certified Ms Mallon fit for suitable duties from 25 February 2006 to 13 March 2006 (recorded as 13 February 2006 in error) with the following restrictions: 7.5 hours per day, five days per week with lifting restricted to 5 kg to 7 kg; unrestricted walking; sitting for less than one hour; standing for less than one hour; no stooping; no bending of the back; and changing posture frequently.

   [20] Reply by Southern Cross Care at page 118

4. It was unclear why, on 18 February 2006, Ms Mallon attended on Dr Karen in respect of her back injury on 31 October 2005, being some eight days after her 10 February 2006 injury and then attended on another general practitioner six days later in respect of her back injury on 10 February 2006.

5. In evidence, are Ms Mallon’s clinical records produced by Glover Street Surgery (the GSS records) on 12 January 2017.[21] Ms Mallon’s consultation notes in the GSS records commenced on 11 April 2012 and ended on 16 December 2016. Ms Mallon mainly consulted Dr Fisher at the Glover Street Surgery until the latter’s retirement. On Dr Fisher’s retirement, Ms Mallon mainly consulted Dr Heal. It is unclear why the GSS records in evidence commenced from 11 April 2012, when it was clear on the evidence that Ms Mallon had been consulting medical practitioners at Glover Street Surgery since, at least, 2 November 2005.[22]

   [21] Reply by Southern Cross Care at pages 40-116

   [22] ARD at pages 198

6. In evidence, there is a report by Dr Fisher to Ms Mallon’s lawyers dated 12 August 2016.[23] Dr Fisher reported that Ms Mallon attended the surgery on 2 November 2005 with symptoms of a painful tailbone for three days. On examination, Dr Fisher observed that Ms Mallon was tender over the lumbosacral region, with pain on bending. Straight leg raising was mildly limited in both legs. The low back pain continued, with radiation into the left buttock and left thigh. A CT scan demonstrated a minimal bulge of the L5/S1 disc without neural compromise. The CT scan referred to by Dr Fisher was not in evidence.

   [23] ARD at pages 198-199

7. In her report dated 12 August 2016, Dr Fisher reported that Ms Mallon attended the surgery on 13 February 2006 with lower back pain as a result of work. There was no description of the mechanism of the work-related injury. Dr Fisher reported that Ms Mallon was off work from 12 February 2006 to 17 February 2006. Ms Mallon underwent a further CT scan of the lumbar spine and was on “Worker’s [sic] compensation leave”[24] until 13 March 2006. Dr Fisher made no reference to the findings in respect of the further CT scan of Ms Mallon’s lumbar spine.

   [24] ARD at page 198

8. In her report dated 12 August 2016, Dr Fisher reported that Ms Mallon consulted Dr Raghavendra of Glover Street Surgery on 15 December 2010 complaining of low back pain over the tailbone and requiring three days off work. There was no description of the mechanism of any work-related injury.

9. In her report dated 12 August 2016, Dr Fisher reported that, on 19 December 2011, Ms Mallon bent to pick up a box of lemonade at work and injured her lower back. She attended the surgery for treatment on 21 December 2011 (referred to as 21 November 2011 in error). Dr Fisher reported that Ms Mallon returned to work but became stressed and anxious as a result of her high workload and presented for treatment at the surgery on 12 January 2012. She was given time off work until 30 January 2012.

10. In her report dated 12 August 2016, Dr Fisher reported that, on 1 February 2012, Ms Mallon presented with a history of having lifted a heavy bag of garbage at work on 31 January 2012, injuring her lower back. Ms Mallon also gave a history of having lifted a 10 kg bag of potatoes on 1 February 2012 and immediately experiencing back pain radiating into her left buttock. Ms Mallon was certified unfit for work, treated with rest and analgesics and referred for physiotherapy. On examination, Dr Fisher observed a very limited range of motion of the back, with straight leg raising limited to 45° on the left. Dr Fisher reported that Ms Mallon’s back improved and that she returned to work on restricted duties on 20 February 2012. However, by the end of March 2012, Ms Mallon’s pain had worsened and she was off work for a week, followed by a return to suitable duties. On 10 April 2012, Ms Mallon was made redundant. Dr Fisher reported that Ms Mallon continued to attend the surgery complaining of back pain a number of times over the following year but managed to start a new job with light duties.

11. The entry in the GSS records by Dr Fisher on 11 April 2012 recorded that Ms Mallon consulted Dr Fisher and reported that her back had improved. Dr Fisher noted that Ms Mallon had returned to work on 9 April 2012 and that her back had become painful after about three hours despite extra help in the kitchen at work. It was also noted that Ms Mallon had been made redundant on the following day, that is, 10 April 2012.[25]

    [25] Reply by Southern Cross Care at page 116

12. The entry in the GSS records by Dr Fisher on 19 April 2012 recorded that Ms Mallon consulted Dr Fisher and reported that her back was improving with physiotherapy and without having to cook at work. It was noted that Ms Mallon’s search for a job had been unsuccessful to date.[26]

    [26] Reply by Southern Cross Care at page 115

13. The entry in the GSS records by Dr Fisher on 3 May 2012 recorded that Ms Mallon consulted Dr Fisher complaining of back pain and migraine.[27]

    [27] Reply by Southern Cross Care at page 114

14. The entry in the GSS records by Dr Fisher on 10 May 2012 recorded that Ms Mallon consulted Dr Fisher reporting that she had hurt her lower back again by trying to stop a tin of beetroot from falling four days previously.[28]

    [28] Reply by Southern Cross Care at page 103

15. The entry in the GSS records by Dr Fisher on 28 May 2012 recorded that Ms Mallon consulted Dr Fisher reporting that her back pain had improved with physiotherapy but that it recurred on lifting even 5 kg of vegetables; after driving; sitting for more than 30 minutes; or standing for more than 30 minutes.[29]

    [29] Reply by Southern Cross Care at page 104

1. The entry in the GSS records by Dr Fisher on 18 June 2012 recorded that Ms Mallon consulted Dr Fisher complaining of a painful back. Dr Fisher noted that Ms Mallon was looking for a rental unit and had been moving boxes. She was still undergoing physiotherapy.

2. The entry in the GSS records by Dr Fisher on 16 July 2012 recorded that Ms Mallon consulted Dr Fisher complaining that her lower back had been very painful and that she had experienced abdominal cramps since she went on an hour-long walk the previous week.[30]

   [30] Reply by Southern Cross Care at page 110

3. The entry in the GSS records by Dr Fisher on 16 August 2012 recorded that Ms Mallon consulted Dr Fisher complaining of back pain radiating down her left leg.[31]

   [31] Reply by Southern Cross Care at page 109

4. The entry in the GSS records by Dr Fisher on 24 September 2012 recorded that Ms Mallon consulted Dr Fisher complaining of low back pain that recurred on the weekend with radiation down the left leg. She had been doing well at the gym.[32]

   [32] Reply by Southern Cross Care at page 97

5. The entry in the GSS records by Dr Fisher on 26 November 2012 recorded that Ms Mallon consulted Dr Fisher complaining that her back was still painful and that, as a result, she had to miss some time at the gym.[33]

   [33] Reply by Southern Cross Care at page 95

6. The entry in the GSS records by Dr Fisher on 9 January 2013 recorded that Ms Mallon consulted Dr Fisher and reported that her back had been much better and was only sore when carrying groceries or walking up and down stairs.[34]

   [34] Reply by Southern Cross Care at page 98

7. The entry in the GSS records by Dr Fisher on 29 January 2013 recorded that Ms Mallon consulted Dr Fisher complaining that her back was still painful and had flared up on getting off the toilet two weeks previously.[35]

   [35] Reply by Southern Cross Care at page 108

8. The entry in the GSS records by Dr Fisher on 17 April 2013 recorded that Ms Mallon consulted Dr Fisher complaining that her back had become much worse after she bent to assist a patient on 5 April 2013 (presumably whilst she was employed as a blood collector by Laverty) and resulted in time off work.[36]

   [36] Reply by Southern Cross Care at page 91

9. The entry in the GSS records by Dr Fisher on 31 December 2013 recorded that Ms Mallon consulted Dr Fisher complaining of a cluster headache and back pain resulting in her being unable to drive home.[37]

   [37] Reply by Southern Cross Care at page 81

10. The entry in the GSS records by Dr Fisher on 21 May 2014 recorded that Ms Mallon consulted Dr Fisher complaining of bad left lower back pain radiating down the left leg to above the left ankle for the past month. Dr Fisher referred her for an MRI scan of the lumbar spine.[38]

    [38] Reply by Southern Cross Care at page 79

11. In her report dated 12 August 2016, Dr Fisher reported that Ms Mallon consulted her on 21 May 2014 complaining of persistent low back pain radiating into the leg, requiring opioid analgesics. Ms Mallon was referred for an MRI scan of her lumbar spine which demonstrated an L5/S1 disc bulge mildly effacing the central nerve roots, left more than right. On examination, Dr Fisher observed very limited movement consistent with the injury and referred her to Dr Ferch. Dr Fisher did not record a description of the mechanism of the injury referred to. Dr Fisher reported that Ms Mallon underwent a steroid injection with some relief and was treated with Lyrica and Endone. By March 2015, Ms Mallon reported more persistent back pain and had taken some time off work. Ms Mallon was referred to Dr Spittaler and underwent a further MRI scan of her lumbar spine. The MRI scan demonstrated a moderate L5/S1 disc bulge abutting S1 nerves.

12. The entry in the GSS records by Dr Fisher on 4 June 2014 recorded that Ms Mallon consulted Dr Fisher complaining that her back pain was much worse over the past two days and that she was walking with difficulty. Dr Fisher recorded the MRI scan result as a disc prolapse with thecal pressure.[39]

    [39] Reply by Southern Cross Care at page 78

13. On 5 June 2014, Ms Mallon consulted Dr Richard Ferch, Neurosurgeon, who reported back to Dr Fisher.[40] Dr Ferch referred to Ms Mallon having a long history of symptoms related to her back, having initially injured it in January 2012 when working as a cook in a nursing home. He did not refer to the incidents on 31 October 2005, 10 February 2006, 19 December 2011 or 1 February 2012. He only referred to “lifting potatoes and bags of lemonade”[41] when she developed a severe episode of low back pain. The evidence is that the lemonade lifting incident occurred on 19 December 2011 and that the incident involving the lifting of 10 kg of potatoes occurred on 1 February 2012. Ms Mallon presented to Dr Ferch as a result of developing a severe episode of pain radiating across her back and into her left buttock and posterior thigh some four days earlier. Dr Ferch reviewed the recent MRI scan of Ms Mallon’s lumbar spine and confirmed degenerative change, particularly, at the L5/S1 level where there was a central to left-sided disc bulging and at the L4/5 level, where there was some dehydration within the disc but much less in the way of neural compromise. He recommended conservative treatment and referred her for a transforaminal steroid injection. He opined that it was unlikely that she would benefit from any surgical treatment.

    [40] Reply by Southern Cross Care at page 31

    [41] Reply by Southern Cross Care at page 31

14. The entry in the GSS records by Dr Fisher on 11 October 2014 recorded that Ms Mallon consulted Dr Fisher reporting that she had jarred her back again at home and had severe pain radiating down the left buttock, left thigh and lower left leg with a slight numbness around her anus. She consulted a general practitioner in Killarney Vale and underwent a steroid injection and was now able to walk but was taking Lyrica and Endone.[42]

    [42] Reply by Southern Cross Care at page 76

15. The entry in the GSS records by Dr Fisher on 26 November 2014 recorded that Ms Mallon consulted Dr Fisher reporting that she was walking much better but still limping a little, especially after prolonged walking. She had undergone a steroid injection.[43]

    [43] Reply by Southern Cross Care at page 75

16. The entry in the GSS records by Dr Mayanamada on 30 January 2015 recorded that Ms Mallon consulted Dr Mayanamada complaining of an exacerbation of back pain that morning. The doctor gave some general advice.[44]

    [44] Reply by Southern Cross Care at page 70

17. The entry in the GSS records by Dr Fisher on 9 March 2015 recorded that Ms Mallon consulted Dr Fisher complaining that two weeks previously she suffered low back pain resulting in time off work. She was experiencing difficulty walking uphill. She reported that some pain was radiating into her right buttock and that there was left leg numbness and dragging. Medicating with Lyrica provided some relief.[45]

    [45] Reply by Southern Cross Care at page 68

18. The entry in the GSS records by Dr Mayanamada on 17 March 2015 recorded that Ms Mallon consulted Dr Mayanamada complaining of ongoing low back pain and a new pain in the mid thoracic spine since the previous day. Bending made the pain worse. The pain was relieved by medicating with Celebrex and the use of a heat pack. The doctor advised her to continue the same pain management.[46]

    [46] Reply by Southern Cross Care at page 67

19. On 30 April 2015, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[47] Dr Spittaler took a history that included low back pain arising from the 2005, 2011 and January 2012 incidents. He noted that Ms Mallon ceased work as a cook in an aged care facility in April 2012 and was made redundant. He noted that she subsequently obtained less physical employment as a pathology collector. Dr Spittaler reported that, without any clear reason, Ms Mallon developed quite severe left leg pain in September 2014, which was now the major problem. The pain radiated from the left buttock into the posterior thigh and calf; was worse with standing and aggravated by prolonged sitting; and worse with coughing and straining. On examination, Dr Spittaler observed that there was an absent left ankle jerk but no weakness or sensory impairment. He noted that an MRI scan report in May 2014 suggested a central L5/S1 disc bulge and that the CT scan performed after the commencement of her sciatic pain appeared to demonstrate a more significant left-sided L5/S1 disc prolapse. Dr Spittaler opined that Ms Mallon’s symptoms were sciatic in origin from root compression and requested that she undergo another MRI scan of the lumbar spine to confirm his preliminary view. He noted that, if there was clear root compression, then surgery would likely assist in alleviating her symptoms.

    [47] ARD at pages 152-153

20. On 18 May 2015, Ms Mallon underwent an MRI scan of her lumbar spine by Dr Angel Wu and Dr Shane Fernando, Radiologists.[48] The MRI scan demonstrated a small broad-based disc bulge without significant neural foraminal or spinal canal stenosis at L4/5 and a moderate L5/S1 disc bulge abutting the traversing S1 nerves bilaterally without evidence of compression.

    [48] ARD at pages 216-217

21. On 3 June 2015, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[49] Dr Spittaler reviewed the MRI scan of Ms Mallon’s lumbar spine and opined that there was no root compression and presumed that her leg symptoms were due to root irritation. He did not believe that surgery was the next step. He recommended a right L5/S1 transforaminal steroid injection to assist alleviating her leg pain. If that did not assist, he opined that the next step would be a referral to a pain clinic.

    [49] ARD at page 154

22. The entry in the GSS records by Dr Fisher on 23 November 2015 recorded that Ms Mallon consulted Dr Fisher complaining of her back being painful again and causing her to miss work the previous Wednesday. She had some relief from the steroid injection in 2014. She was taking up to six Panadeine Forte per day. Dr Spittaler suggested a transforaminal right L5/S1 steroid injection.[50]

    [50] Reply by Southern Cross Care at page 60

23. In her report dated 12 August 2016, Dr Fisher reported that Ms Mallon returned to work in June 2015 with continuing pain. In November 2015, she underwent a transforaminal steroid injection. By February 2016, she was working part-time. However, her pain recurred and she was reviewed by Dr Spittaler and underwent and L5/S1 microdiscectomy in May 2016. She had been unable to work since then. Ms Mallon did attempt to return to work but was unable to tolerate the prolonged driving or bending.

24. On 7 December 2015, Ms Mallon underwent a CT guided steroid injection into the left L5/S1 foramen by Dr Lawrence Josey, Radiologist.[51]

    [51] ARD at page 218

25. The entry in the GSS records by Dr Fisher on 8 February 2016 recorded that Ms Mallon consulted Dr Fisher complaining of low back pain. She noted that Ms Mallon was working part-time and living out of her car.[52]

    [52] Reply by Southern Cross Care at page 58

26. The entry in the GSS records by Dr Fisher on 29 February 2016 recorded that Ms Mallon consulted Dr Fisher complaining of low back pain with pain into her left toes, especially the first toe, that shot across the foot with the whole leg going numb. Ms Mallon was still struggling to get to work and was medicating with Lyrica and Panadeine Forte.[53]

    [53] Reply by Southern Cross Care at page 57

27. On 3 March 2016, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[54] Dr Spittaler reported that, three weeks before the consultation, Ms Mallon experienced a marked worsening of her symptoms with increasing left leg pain, particularly in the buttock, posterior thigh and posterior calf. There was no paraesthesia. He arranged for Ms Mallon to undergo another MRI scan of her lumbar spine because he thought it possible that she now had a frank disc prolapse.

    [54] ARD at page 155

28. The entry in the GSS records by Dr Fisher on 7 March 2016 recorded that Ms Mallon consulted Dr Fisher complaining that her back pain had been bad and that she was unable to work on Thursday and Friday.[55]

    [55] Reply by Southern Cross Care at page 56

29. On 29 March 2016, Ms Mallon underwent an MRI scan of her lumbar spine by Dr Adam Seruga and Dr Murugasu Puvaneswary, Radiologists.[56] The radiologists commented that the lumbar spine appeared stable when compared to the MRI scan of May 2015. The scan demonstrated that there remained a small broad-based L4/5 disc bulge without associated canal or neural exit foraminal stenosis and that there remained a broad-based but predominantly central disc extrusion with a narrow neck abutting both traversing S1 nerve roots in the lateral recesses without displacement and a mild bilateral neural exit foraminal stenosis without L5 nerve root exit compromise.

    [56] ARD at page 219

30. On 31 March 2016, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[57] Dr Spittaler opined that, whilst not reported as being any worse, he thought that there was probably a slight increase in the size of the central L5/S1 disc bulge particularly on the left-hand side. He noted that Ms Mallon’s sciatica had been persisting at a higher level than it had in the previous year and that it had been worse for several months. He noted that the steroid injection did not really assist her. He discussed the likely relief of her leg pain if she were to undergo a left L5/S1 microdiscectomy.

    [57] ARD at page 157

31. The entry in the GSS records by Dr Fisher on 4 April 2016 recorded that Ms Mallon consulted Dr Fisher advising that Dr Spittaler had booked her in for a lumbar discectomy and that she was having problems at work, having been issued with a warning letter about her sick leave.[58]

    [58] Reply by Southern Cross Care at page 55

32. The entry in the GSS records by Dr Fisher on 11 April 2016 recorded that Ms Mallon consulted Dr Fisher complaining that her back pain had been worse over the last few days and that she was limping. Ms Mallon had been criticised at work for taking a lot of sick leave and was now on probation. She was distressed.[59]

    [59] Reply by Southern Cross Care at page 54

33. The entry in the GSS records by Dr Fisher on 18 April 2016 recorded that Ms Mallon consulted Dr Fisher advising that her back felt a little better and that she was moving more freely and was returning to work the next day. She confirmed that she was booked in for surgery by Dr Spittaler on 2 May 2016.[60]

    [60] Reply by Southern Cross Care at page 53

34. On 2 May 2016, Ms Mallon underwent an L5/S1 microdiscectomy performed by Dr Spittaler.

35. The entry in the GSS records by Dr Fisher on 13 May 2016 recorded that Ms Mallon consulted Dr Fisher complaining of persistent left lateral buttock pain and lateral lower leg pain. Ms Mallon was medicating with Panadeine Forte and Lyrica.[61]

    [61] Reply by Southern Cross Care at page 52

36. The entry in the GSS records by Dr Fisher on 27 May 2016 recorded that Ms Mallon consulted Dr Fisher advising that she was feeling much better with very little pain into her left leg. However, her back became sore after prolonged standing. She was managing well at home. She had been able to drive up to 40 minutes. She was advised to take three to four weeks off work. She was keen to return to work immediately.[62]

    [62] Reply by Southern Cross Care at page 51

37. The entry in the GSS records by Dr Fisher on 15 June 2016 recorded that Ms Mallon consulted Dr Fisher advising that she was still experiencing pain across her back with numbness in the left thigh that woke her at night. She had managed work for a week and was driving long distances. She had been asked to travel an hour to Umina for work.[63]

    [63] Reply by Southern Cross Care at page 50

38. On 15 June 2016, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[64] Dr Spittaler reported that Ms Mallon’s wound from the L5/S1 microdiscectomy on 2 May 2016 had healed well and that she had no further left leg pain. Ms Mallon reported some paraesthesia but Dr Spittaler was hopeful that it would settle with time.

    [64] ARD at page 161

39. The entry in the GSS records by Dr Fisher on 29 June 2016 recorded that Ms Mallon consulted Dr Fisher advising that she had been travelling two hours each way to work and as a result, was experiencing low back pain radiating into the left leg and left foot and into the right buttock. She was limping.[65]

    [65] Reply by Southern Cross Care at page 49

40. On 14 July 2016, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[66] Dr Spittaler reported that a few weeks after his last consultation with Ms Mallon, she developed quite severe right leg pain, radiating from the buttock into the posterior thigh and calf. On examination, Dr Spittaler observed that Ms Mallon was obviously quite uncomfortable. She had no weakness of dorsi or plantar flexion. He was uncertain as to the cause of the new symptoms on the opposite side and referred Ms Mallon for another MRI scan of her lumbar spine.

    [66] ARD at page 162

41. On 25 July 2016, Ms Mallon underwent an MRI scan of the lumbar spine by Dr Philip Janke, Radiologist.[67] The MRI scan demonstrated small posterior disc protrusions at both L4/5 and L5/S1 levels not obviously associated with neural compromise.

    [67] ARD at page 220

42. On 18 August 2016, Ms Mallon consulted Dr Spittaler, who reported back to Dr Fisher.[68] Dr Spittaler reviewed the MRI scan of Ms Mallon’s lumbar spine and observed that she had degeneration of the lowest two intervertebral discs but no significant prolapse or at least, no nerve root compression. He opined that repeat surgery was unlikely to assist her. He reported that Ms Mallon was anxious about an attempt to return to work because it may worsen her back pain. However, he noted that she did not really perform heavy work and he opined that there was a low risk in materially making her condition worse. He further opined that if she could avoid bending whilst venipuncturing, she would probably minimise her symptoms.

    [68] ARD at page 163

43. The entry in the GSS records by Dr Fisher on 28 October 2016 recorded that Ms Mallon consulted Dr Fisher complaining of pain in her lower back, left leg and left buttock. Dr Fisher noted that she was walking with a marked limp.[69]

    [69] Reply by Southern Cross Care at page 46

44. The entry in the GSS records by Dr Fisher on 4 November 2016 recorded that Ms Mallon consulted Dr Fisher complaining of a lot of pain in her lower back, left leg and stabbing pains into the left buttock, radiating down her leg and waking with cramps in the left calf at night. She experienced numbness, pain and heaviness in her left foot and left leg. She was medicating with Lyrica and Panadeine Forte.[70]

    [70] Reply by Southern Cross Care at page 45

45. In November 2016, Ms Mallon consulted Dr Spittaler and reported that her right leg symptoms had settled but that her left leg pain had increased. He arranged for her to undergo another MRI scan of the lumbar spine on 20 November 2016.[71]

    [71] ARD at page 191

46. The entry in the GSS records by Dr Fisher on 18 November 2016 recorded that Ms Mallon consulted Dr Fisher complaining of numbness in her left leg most of the time and walking awkwardly, partly bent to the left.[72]

    [72] Reply by Southern Cross Care at page 44

47. The entry in the GSS records by Dr Fisher on 2 December 2016 recorded that Ms Mallon consulted Dr Fisher advising that her lower back was not too bad but that she was becoming breathless on stairs and was experiencing some intermittent chest pain unrelated to exercise.[73]

    [73] Reply by Southern Cross Care at page 43

48. The entry in the GSS records by Dr Fisher on 9 December 2016 recorded that Ms Mallon consulted Dr Fisher complaining of her left leg going numb and pains in her anterior chest.[74]

    [74] Reply by Southern Cross Care at page 42

49. On 14 December 2016, Ms Mallon consulted Dr Spittaler and discussed the findings of the MRI scan dated 20 November 2016. He referred her for a left L4/5 transforaminal steroid injection.[75]

    [75] ARD at page 191

50. The entry in the GSS records by Dr Fisher on 16 December 2016 recorded that Ms Mallon consulted Dr Fisher advising that she had consulted Dr Spittaler and he advised that she undergo a steroid injection and raised the possibility of further surgery.[76]

    [76] Reply by Southern Cross Care at page 41

1. On 23 December 2016, Dr Spittaler prepared a short report addressed “to whom it may concern”.[77] He reported that he had been treating Ms Mallon for degenerative lumbar disc disease since April 2015 and that she had undergone a left L5/S1 microdiscectomy in May 2016, which relieved her sciatica. In November 2016, she presented with recurrent left leg pain and on MRI there was evidence of an L4/5 lateral recess stenosis that was treated with a transforaminal steroid injection and perhaps surgery in the New Year. He noted Ms Mallon’s current medication included Lyrica 150 mg twice a day and Panadeine Forte three to four times a day.

   [77] ARD at page 165

2. On 23 December 2016, Dr Spittaler prepared a second short report addressed “to whom it may concern”.[78] Dr Spittaler reported Ms Mallon as suffering from persisting back and leg symptoms which precluded her from performing her normal duties as a pathology collector. He opined that she was also likely to experience increasing back pain when driving or using public transport.

   [78] ARD at page 166

3. On 2 February 2017, Ms Mallon consulted Dr Spittaler and reported that the left L4/5 transforaminal steroid injection had assisted her. He discussed an L4/5 laminectomy to try and decompress the lateral recess on the left at L4/5 and relieve her leg symptoms.[79]

   [79] ARD at pages 191-192

4. On 5 June 2017, Ms Mallon underwent an L4/5 laminectomy performed by Dr Spittaler.[80]

   [80] ARD at pages 167-176

5. On 20 July 2017, Ms Mallon consulted Dr Spittaler, who reported that the surgical wound had healed well. He noted that she had experienced improvement in her left leg symptoms, although she was now complaining of some right leg symptoms.[81]

   [81] ARD at page 192

6. On 14 September 2017, Ms Mallon consulted Dr Spittaler and reported that her right leg pain had settled but that her back pain had increased.[82]

   [82] ARD at page 192

7. On 28 September 2017, Ms Mallon consulted Dr Spittaler who noted that she was struggling somewhat with her back pain. However, he did not believe that surgery was the appropriate next step and referred her to a pain clinic.[83]

   [83] ARD at page 192

8. In response to correspondence from Ms Mallon, Dr Spittaler responded by way of letter dated 17 November 2017,[84] wherein he stated that Ms Mallon did not have acute back pain but did have long-standing lumbar degenerative disc disease. He opined that the latter would preclude her from performing her usual duties as a pathology collector or, in fact, any duties that one would reasonably expect she would be suitable for with regard to her prior education, training and qualifications.

   [84] ARD at page 177

9. On 4 May 2018, Ms Mallon underwent a CT scan of her lumbosacral spine by Dr Shane Fernando.[85] The radiologist noted the laminectomy. The MRI scan demonstrated degenerative disc disease at L5/S1 with broad-based disc bulges at L4/5 and L5/S1 with possible impingement of the traversing S1 nerve roots at the L5/S1 level explaining Ms Mallon’s new symptoms of paraesthesia.

   [85] ARD at page 221

10. On 24 January 2019, Ms Mallon consulted Dr Spittaler complaining of neck pain headache and left leg pain. He referred her for an MRI scan of her lumbar spine.[86]

    [86] ARD at page 192

11. On 1 February 2019, Ms Mallon underwent an MRI scan of her lumbar spine by Dr Gannon McWhirter, Radiologist.[87] The MRI scan demonstrated multilevel lumbar spondylosis; postsurgical decompression at L5/S1; the disc herniations at L4/5 and L5/S1 had diminished slightly in size since the study in September 2017; and foraminal stenoses were unchanged.

    [87] ARD at page 222-223

12. On 14 February 2019, Ms Mallon consulted Dr Spittaler, who reported back to Dr Heal.[88] In respect of Ms Mallon’s left leg pain, he opined that she had an L5/S1 foraminal stenosis. He further opined that a left L5/S1 foraminotomy would very likely improve the left leg pain.

    [88] ARD at page 178

13. On 29 April 2019, Ms Mallon underwent an L5/S1 foraminotomy performed by Dr Spittaler.

14. On 12 June 2019, Ms Mallon consulted Dr Spittaler who noted that her surgical wound had healed well and that she had experienced a marked improvement in her leg pain.[89]

    [89] ARD at page 193

15. On 19 July 2019, Ms Mallon consulted Dr Spittaler and reported that her sciatica had recurred. Dr Spittaler noted that this occasionally occurred in foraminal surgery due to a loss of disc height and opined that the way to circumvent the problem was by increasing the disc height with an interbody fusion procedure. Ms Mallon agreed to go ahead with the procedure at her consultation with Dr Spittaler on 7 August 2019.[90]

    [90] ARD at page 193

16. On 10 October 2019, Dr Spittaler prepared a report at the request of Ms Mallon’s lawyers.[91] Dr Spittaler provided a diagnosis of L4/5 and L5/S1 intervertebral disc degeneration with L5/S1 foraminal stenosis due to loss of disc height. He noted that one could also place the diagnosis of failed back surgery syndrome given that Ms Mallon had undergone two surgical procedures and had persisting symptoms. However, he was optimistic that the proposed lumbar fusion would lead to some improvement in the sciatic pain. In response to the question whether the need for the L5/S1 foraminotomy on 29 April 2019 arose from the injuries sustained during the course of Ms Mallon’s employment on 19 December 2011 and/or the nature and conditions of her employment between May/June 2016 and late June 2016, Dr Spittaler opined as follows:

    “The patient has documented a number of injuries over the years. I would make two observations, firstly that Miss Mallon is a slight individual and secondly she has done initially physical work in the kitchen and work requiring a large amount of flexion as a blood collector. On balance I think it is more likely that the foraminotomy is a consequence of the original employment and the injury in 2011 rather than subsequent injuries. I would consider that the injury in 2011 has led to the start of lumbar disc degeneration which is the problem now with loss of disc height rather than any frank more recent injury.[92]

    [91] ARD at pages 189-196

    [92] ARD at page 195

17. On 17 October 2019, Ms Mallon underwent an L5/S1 interbody fusion by Dr Spittaler.

18. On 27 November 2019, Ms Mallon consulted Dr Spittaler, who reported back to Dr Catherine Kennedy of The Entrance Medical Centre.[93] Dr Spittaler reviewed a recent CT scan of Ms Mallon’s lumbar spine which “looks great”.[94] Dr Spittaler noted that Ms Mallon’s leg pain was better but that she was unsurprisingly experiencing a fair bit of back pain. He encouraged her to commence physiotherapy and swimming.

    [93] ARD at page 197

    [94] ARD at page 197

19. On 22 November 2020, Ms Mallon underwent an MRI scan of her lumbar spine by Dr Rati Singh, Radiologist.[95] The radiologist commented that there was a moderate broad-based disc bulge at L4/5 with bilateral foraminal narrowing but good spinal fusion and decompression appearances. The MRI scan demonstrated that at L4/5 there was moderate bilateral foraminal narrowing, slightly greater on the right and a minor central disc without overt descending L5 impingement; and at L5/S1 there was a mild central disc bulge without impingement of the descending S1 nerve root and without major foraminal stenosis.

The forensic medical evidence

[95] ARD at page 224

Dr John Watson

1. On 31 August 2012, Ms Mallon consulted Dr John Watson, Orthopaedic Surgeon, at the request of CCI. In evidence, there is a report by Dr Watson dated 5 September 2012.[96] I will now refer to the relevant parts of that report.

   [96] Reply by Southern Cross Care at pages 19-27

2. Dr Watson took a history that Ms Mallon suffered back pain at work in 2005 whilst lifting garbage bags and as a result, was off work for three weeks. Dr Watson recorded that Ms Mallon undertook lifting on three occasions at work. On 19 December 2011, she was lifting 12 lemonade bottles. On 31 January 2012, she was lifting a garbage bag and placing it in an industrial bin. On 1 February 2012, she was lifting 10 kg of potatoes. Her pain was in the lumbosacral spine with some radiation into the left buttock and on occasions, there had been pain to the knee.

3. Dr Watson diagnosed that Ms Mallon had minor discogenic pathology at the L5/S1 level that did not require any operative procedure. He opined that conservative management should continue.

4. Dr Watson opined that the incidents of 31 January 2012 and 1 February 2012 could have been associated with an aggravation of pathology and could have presented itself as a result of the incident on 19 December 2011. He further opined that if Ms Mallon had sustained an aggravation, it was temporary. Dr Watson elaborated that Ms Mallon’s minor discogenic pathology could be related to the incident of 19 December 2011 or could have been associated with the aggravation on 31 January 2012 or 1 February 2012 but he believed that it had now ceased. He opined that Ms Mallon should be able to return to her previous occupation after performing six to eight weeks of suitable duties.

5. Dr Watson opined that Ms Mallon’s prognosis was “probably guarded”.[97] He opined that she may well develop further pain if she involves herself in heavy lifting.

   [97] Reply by Southern Cross Care at page 25 at [7]

6. In evidence, there is a short supplementary report by Dr Watson dated 12 November 2012 produced at the request of CCI.[98] Dr Watson opined that he believed that Ms Mallon had recovered from the effects of her work-related injury on 31 January 2012 and that her ongoing symptoms were directly related to her constitutional condition and unrelated to her employment with Southern Cross Care.

   [98] Reply by Southern Cross Care at pages 28-29

Dr James Bodel

1. On 1 November 2012, Ms Mallon consulted Dr James Bodel, Orthopaedic Surgeon, at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 1 November 2012.[99]
   

   [99] ARD at pages 103-109

   I will now refer to the relevant parts of that report.

2. Dr Bodel took a history that Ms Mallon first suffered an injury to her back at work on 19 December 2011 whilst lifting a box containing 2 litre bottles of lemonade. She felt pain in the lower part of the back, the sacrococcygeal region and in the left buttock but continued to work. On 31 January 2012, she sustained a further injury at work when taking out the garbage. She had not completely recovered in the intervening period and had been under the care of her general practitioner, who had prescribed medication. On 1 February 2012, she tried to work again and lifted a bag of potatoes weighing 10 kg. Again, the pain was unbearable and she consulted her general practitioner. She settled with conservative care but her condition never resolved. Dr Bodel noted that Ms Mallon suffered a minor episode of back pain at work in 2005 from which she recovered within about three weeks. On 28 March 2012, Ms Mallon’s pain became unbearable and she presented to Belmont Hospital, where she was observed by medical staff, underwent x-rays and prescribed medication. She returned to her general practitioner and was treated with rest, analgesic medication and physiotherapy. At that stage, she began to develop pain radiating into the left leg.

3. Dr Bodel referred to a CT scan of Ms Mallon’s lumbosacral spine dated 23 July 2012 that demonstrated some minor bulging at L4/5 and a significant central prolapse at L5/S1 but no definite nerve root compromise.

4. Dr Bodel diagnosed a disc rupture at the L5/S1 level caused by the series of work injuries on 19 December 2011, 31 January 2012 and 1 February 2012. He opined that there was no evidence of aggravation, acceleration, exacerbation and deterioration of a disease process in the circumstances. He opined that there had been a series of frank injuries causing the disc pathology at the L5/S1 level. Dr Bodel stated that his diagnosis was made on the basis of his clinical findings and the abnormalities seen on the CT scan referred to.

5. Dr Bodel diagnosed that Ms Mallon’s prognosis remained guarded because of her levels of pain. He assessed Ms Mallon’s whole person impairment in respect of her lumbar spine at 7%.

6. On 3 December 2014, Ms Mallon consulted Dr Bodel at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 9 December 2014.[100] I will now refer to the relevant parts of that report.

   [100] ARD at pages 110-114

7. In that consultation, Dr Bodel took a similar history in respect of the incidents on 19 December 2011, 31 January 2012 and 1 February 2012. He referred to the incident on 31 January 2012 as causing a further aggravation. He reported that following the 1 February 2012 incident, Ms Mallon was treated conservatively and she slowly settled. On 28 March 2012, there was no further incident or injury but her pain spread from the back down her left leg.

8. Dr Bodel reported that Ms Mallon was medicating with Lyrica 75 mg twice daily; between two and five Endone tablets a day; and up to four Panadeine Forte a day.

9. Dr Bodel reviewed the medical imaging made available to him, which included the CT scan of the lumbar spine dated 23 July 2012 referred to in his first report. In addition, he observed that the CT scan of Ms Mallon’s lumbosacral spine dated 25 September 2014 demonstrated the same pathology at L4/5 and L5/S1 with some impingement of the left S1 nerve root at L5/S1.

10. Following clinical examination, Dr Bodel concluded that there were now clinical signs of radiculopathy in the left leg, which were not present when Ms Mallon consulted him on the last occasion.

11. Dr Bodel observed that Ms Mallon had continuing pain and stiffness in the lower part of her back and left leg. She was severely incapacitated by her pain but she was working full-time as a pathology collector. He noted that Ms Mallon stated that she was struggling in performing such work because of her pain.

12. Dr Bodel opined that, clinically, Ms Mallon needed to consider decompressive surgery on the basis of her current clinical presentation. He opined that her prognosis was guarded but that further interventional treatment, including surgery, may help.

1. In response to letters from Ms Mallon’s lawyers dated 23 July 2015 and 24 August 2015, wherein the lawyers enclosed reports by Dr Spittaler dated 30 April 2015 and 3 June 2015, Dr Bodel provided a report dated 14 September 2015.[101] I will now refer to the relevant parts of that report.

   [101] ARD at pages 115-116

2. Dr Bodel referred to Dr Spittaler’s observation in his report dated 3 June 2015 that he saw no root compression on the recent MRI scan of Ms Mallon’s lumbar spine and therefore, recommended a periradicular block injection or transforaminal steroid injection. Dr Bodel noted that when he assessed Ms Mallon on 3 December 2014, she had undergone a block injection, which had made things worse.

3. Dr Bodel noted that, at the time of his assessment of Ms Mallon on 3 December 2014, he had indicated that, in his view, the MRI scan report of the lumbosacral spine dated 31 May 2014 demonstrated significant disc pathology centrally and to the left side at L5/S1 causing compression of the S1 nerve root on the left side. He acknowledged that Dr Spittaler had taken the view that the investigations did not demonstrate definite nerve root compression and that, for that reason, he did not recommend a surgical decompression.

4. In conclusion, Dr Bodel opined that in respect of the nature of the injury in Ms Mallon’s case, he indicated that it would be more appropriate to consider it as a nature and conditions of work type claim rather than a series of frank injuries. Clearly, this was something that was put to Dr Bodel in one or both of the letters from Ms Mallon’s lawyers dated 23 July 2015 and 24 August 2015.

5. On 19 July 2017, Ms Mallon consulted Dr Bodel at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 24 July 2017.[102] I will now refer to the relevant parts of that report.

   [102] ARD at pages 117-116

6. On this occasion, based on the contents of the referral letter from Ms Mallon’s lawyers, Dr Bodel noted in the history the two earlier episodes of injury in late 2005 and February 2006, which were minor episodes lifting bags of garbage and performing vacuuming. Dr Bodel also took a history of the further investigations undergone by Ms Mallon and the discectomy performed by Dr Spittaler on 2 May 2016. Ms Mallon reported some initial improvement following the surgery and there was sufficient improvement enabling her to return to work as a pathology collector. She returned to work as quickly as she could because she could not afford to be off work for any length of time. When she returned to work after surgery, she was sent quite long distances to undertake the work activities, contrary to the 40 minute travel limitations referred to in her certificates of capacity. Within a very brief period of time her back pain and left leg pain worsened. She was finally put off work in June 2016. Ms Mallon’s pain had steadily deteriorated. She returned to Dr Spittaler and underwent a second surgical procedure on 5 June 2017 and reported that following the procedure her pain was much worse than ever. It now involved her right leg.

7. Dr Bodel referred to an MRI scan of Ms Mallon’s lumbosacral spine dated 19 November 2016 that demonstrated disc pathology at both L4/5 and a very large disc prolapse at the L5/S1 level centrally and to the left side.

8. Dr Bodel noted that Ms Mallon’s original injury at work dated back to 2005 and that there were multiple recurrences but that it had become very serious in late February or early March 2012. Dr Bodel was satisfied that, clinically, there was a disruption at the lumbosacral junction involving the L4/5 and the L5/S1 caused by those episodes of injury that occurred at work when she initially worked as a cook for Southern Cross Care. She had never been normal thereafter. She worked for two different pathology collection agencies. Dr Bodel opined that the nature of the work as a pathology collector and the travel involved appeared to have caused aggravation, acceleration, exacerbation and deterioration of the disease process which had been present since the original injury with Southern Cross Care.

9. Dr Bodel opined that Ms Mallon had persisting signs of radiculopathy. Dr Bodel diagnosed a disc rupture at the L4/5 and L5/S1 level caused by the original injury. He opined that Ms Mallon’s ongoing disabilities arose as a result of the original injury. He further opined that Ms Mallon had suffered a personal injury and a disease process that had been aggravated, accelerated, exacerbated and deteriorated for the reasons he had already referred to.

10. Dr Bodel was satisfied that the original injury at Southern Cross Care resulted in a disc prolapse at the L4/5 and L5/S1 levels. He opined that subsequent workplaces had caused further aggravation and led to the need for the surgical procedures. In explaining the rationale behind his opinion as to causation, Dr Bodel stated that he was satisfied that the original injuries caused significant back pathology based on the available medical evidence and the recurring episodes. Ms Mallon’s circumstance deteriorated with quite clear evidence of left-sided radiculopathy that persisted to date. He explained that this was always part of the same complex.

11. Dr Bodel opined that Ms Mallon’s overall prognosis remained very guarded.

12. On 13 November 2018, Ms Mallon consulted Dr Bodel at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 13 November 2018.[103] I will now refer to the relevant parts of that report.

    [103] ARD at pages 127-126

13. Dr Bodel stated that Ms Mallon was again being reviewed because of the various episodes of injury that occurred at work from 31 October 2005 through to February 2012 and, in addition, the nature and conditions of work claimed as part of the injury from 2004 and 2006 and again between 2008 and 10 April 2012.

14. On examination, Dr Bodel observed, amongst other things, that there was no evidence of nerve root irritability; there was a negative sciatic stretch test on the left; the left thigh and calf were only a few millimetres smaller than the right; there was no measurable wasting of significance in the left lower limb; knee and ankle jerk reflexes were present and equal; distribution of sensory loss in the left leg was non-dermatomal; there was global weakness in the whole of the left lower limb that did not fit an anatomical or myotomal distribution; and there was no objective sign of sensory loss in a dermatomal distribution.

1. On 24 February 2017, Ms Mallon provided Dr Harrington with a history of the pleaded injuries and stated that, during her second stint of employment with Southern Cross Care, she worked in the kitchen on her own cooking for 80 residents without an assistant. On 11 May 2020, Dr Harrington took a history that, after the incidents on 31 October 2005 and 10 February 2006, Ms Mallon had been working more in Southern Cross Care’s kitchens (to ease the stress on her back as an AIN) although, she was required to move boxes of potatoes and lift cartons of soft drink. This really became problematic for her back and caused left leg pain. Dr Harrington did not opine that the nature and conditions of Ms Mallon’s employment with Southern Cross Care were causative of any injury.

2. Understandably, Dr Hughes did not express an opinion as to whether the nature and conditions of Ms Mallon’s employment with Southern Cross Care were causative of any injury as his focus was on the issue of injury arising out of or in the course of employment with Clinical Laboratories.

3. In his report to Ms Mallon’s lawyers dated 10 October 2019, Dr Spittaler did not identify the nature and conditions of her employment with Southern Cross Care as being causative of any injury. Dr Spittaler diagnosed L4/5 and L5/S1 intervertebral disc degeneration with L5/S1 foraminal stenosis due to loss of disc height coupled with failed back surgery syndrome based on the history of the lifting incidents in 2005, 2011 and 2012. He took no history of the 2006 incident. He opined that, on balance, it was more likely that the L5/S1 foraminotomy he performed on 29 April 2019 was a consequence of the original employment and the injury in 2011 rather than the subsequent injuries. He considered that the 2011 injury led to the start of lumbar disc degeneration with subsequent loss of disc height rather than any frank more recent injury. Dr Spittaler did not explain what he meant by “a consequence of the original employment.”[147]

   [147] ARD at page 195 at [8]

4. I found it difficult to discern a clear pathway in Dr Bodel’s reasoning process that enables me to analyse and accept his reasoning process and the change in his conclusion in respect of Ms Mallon’s nature and conditions of employment claim.

5. The onus of establishing injury falls on Ms Mallon and the standard of proof is on the balance of probabilities. I am not satisfied to a degree of actual persuasion or affirmative satisfaction that Ms Mallon has established an injury to her lumbar spine as a result of the nature and conditions of her employment with Southern Cross Care between 2004 and 2006 and again, between 2008 and 10 April 2012.

6. Accordingly, I enter an award in favour of Southern Cross Care in respect of the applicant’s claimed nature and conditions injury to the lumbar spine between 2004 and 2006 and between 2008 and 10 April 2012.

7. There was no dispute that Ms Mallon suffered injury to her lumbar spine in the course of her employment with Southern Cross Care following a series of lifting incidents on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012. There was no dispute that the pathology was at L4/5 and L5/S1.

8. I will now deal with the issue as to whether Ms Mallon suffered an injury to her lumbar spine in the course of her employment with Clinical Laboratories on 24 June 2016 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act.

9. The unchallenged evidence is that Ms Mallon worked for Southern Cross Care until about 28 March 2012, when the symptoms in her lumbar spine deteriorated to such an extent that she attended Belmont District Hospital for examination, investigation and treatment. Shortly afterwards, Ms Mallon’s general practitioner issued her with a certificate for suitable duties with restrictions but Southern Cross Care were unable to provide her with such duties. She attempted to return to work on 9 April 2012 but her lower back became painful after about three hours despite been provided with assistance in the kitchen. She was made redundant on 10 April 2012. She received weekly payments of compensation from CCI until 26 March 2013.

10. Ms Mallon’s unchallenged evidence is that, although her symptoms had been debilitating and significantly affected her ability to work, she was actively seeking further employment, even whilst she was receiving weekly payments of compensation from CCI. The GSS records corroborated Ms Mallon’s evidence and revealed numerous complaints of waxing and waning low back pain and on occasions, the pain radiated into her left leg. Between 9 April 2012 and about the time Ms Mallon commenced employment with Laverty in or about April 2013, the GSS records noted numerous entries of waxing and waning low back symptoms. Some of the exacerbations of symptoms were unrelated to any specific event. Others included events such as trying to stop a tin of beetroot from falling (10 May 2012); recurring lower back pain after driving, sitting or standing for more than 30 minutes (28 May 2012); recurring lower back pain after looking for a rental unit and moving boxes (18 June 2012); recurring severe lower back pain after an hour-long walk (16 July 2012); recurring lower back pain over the weekend with radiation down the left leg (24 September 2012); recurring lower back pain when carrying groceries or walking up and down stairs (9 January 2013); and recurring lower back pain when getting up off the toilet (29 January 2013).

11. The unchallenged evidence is that Ms Mallon continued to suffer from waxing and waning lower back symptoms emanating from the pathology at L4/5 and L5/S1 and on occasions, experienced symptoms in her left leg prior to the commencement of her employment with Laverty. Some of the symptoms that led to increases in her symptoms were innocuous. The preponderance of the medical evidence together with Ms Mallon’s evidence lead me to conclude that, by reason of the injuries sustained in the course of her employment with Southern Cross Care, she was left in a vulnerable position exposing her to a greater frequency and duration of recurrences of her waxing and waning symptoms resulting from even the most innocuous subsequent events.

12. Ms Mallon was employed as a blood collector by Laverty between about April 2013 and 14 January 2014. She took blood from patients as they came into the facility. Despite the work being sedentary, she continued to experience ongoing symptoms in her lower back radiating into her left buttock and left leg. The symptoms did not usually worsen whilst performing those duties. However, if the symptoms were aggravated, they settled to the same point as they had been since she ceased employment with Southern Cross Care. She frequently experienced difficulty getting to work because of her lower back symptoms and took numerous days off work as sick days, using all her annual leave and sick leave.

13. On 17 April 2013, the GSS records recorded that Ms Mallon’s back pain had become much worse after she bent to assist a patient on 5 April 2013, presumably whilst employed as a blood collector by Laverty. The increase in her symptoms resulted in time off work. Ms Mallon did not refer to this incident in her evidentiary statements. Ms Mallon ceased employment with Laverty on 14 January 2014.

14. On 20 January 2014, Ms Mallon commenced employment with Clinical Laboratories as a blood collector performing essentially the same duties as she had with Laverty. In her statement dated 29 June 2016, Ms Mallon only referred to experiencing difficulties getting to work because of her lower back symptoms. However, in her statement dated 28 September 2017, she stated that in hindsight, she had been spending a lot of time hunched-over taking pathology samples frequently throughout the day. Further, after she returned to work for Clinical Laboratories following her L5/S1 microdiscectomy on 2 May 2016, she was sent to work in a different location on the Central Coast and it resulted in her travelling a longer distance by car. She recalled that her lower back was sore, stiff and uncomfortable after the additional travel time. She explained that, on reflection, she felt that her symptoms worsened significantly whilst performing her duties between May/June 2016 and 28 June 2016.

15. On 9 December 2014, Dr Bodel noted that Ms Mallon suffered continuing pain and stiffness in the lower back and left leg and that she was severely incapacitated by her pain. Nevertheless, she was working full-time as a pathology collector but was struggling because of her pain. Dr Bodel did not record a history of any form of aggravation of her back condition having been suffered whilst working for Clinical Laboratories.

16. On 24 February 2017, Dr Harrington opined that Ms Mallon suffered an original lumbar strain at work in 2005 with further aggravations leading to the L5/S1 microdiscectomy. She presented with ongoing left leg pain. However, there was no pathology nor were there any clinical signs to suggest persistent neurology. He was unable to ascertain an accurate diagnosis for Ms Mallon’s symptoms but given her ongoing complaints, opined that it was suggestive of failed back surgery. Dr Harrington did not express an opinion as to whether the nature and conditions of Ms Mallon’s employment with Clinical Laboratories were causative of any injury. He did not express an opinion as to whether the pathology in Ms Mallon’s lumbar spine was aggravated, accelerated, exacerbated or deteriorated in the course of her employment with Clinical Laboratories.

17. On 24 July 2017, Dr Bodel reported, after reviewing an MRI scan of Ms Mallon’s lumbosacral spine dated 19 November 2016, that he was satisfied that, clinically, there was a disruption at the lumbosacral junction involving the L4/5 and the L5/S1 caused by those episodes of injury that occurred whilst working as a cook for Southern Cross Care and that she had never been normal thereafter. He acknowledged that Ms Mallon had worked for two different pathology collection agencies and opined that the nature of the work as pathology collector and the travel involved, appeared to have caused aggravation, acceleration, exacerbation and deterioration of the disease process, which had been present in the original injury with Southern Cross Care. I found Dr Bodel’s opinion in this regard unconvincing. Firstly, he used the word “appeared”. Secondly, he did not provide any reasoning behind that opinion.

18. On 13 November 2018, Dr Bodel opined that the major injury to Ms Mallon was the work event on 19 December 2011, when she first developed left-sided sciatica. However, Dr Fisher’s evidence was that, on 2 November 2005, Ms Mallon presented with a painful tailbone for three days with radiation into the left buttock and left thigh; tenderness over the lumbosacral region with pain on bending; and mildly limited bilateral straight leg raising. The 19 December 2011 event being the major injury, Dr Bodel opined that all other factors, including the nature and conditions of work, were a temporary aggravating factor only.

19. In his report to Ms Mallon’s lawyers dated 10 October 2019, Dr Spittaler did not identify the nature and conditions of her employment with Clinical Laboratories as being causative of any injury. He did not identify any aggravation, acceleration, exacerbation or deterioration of the pathology at L4/5 and/or L5/S1 in the course of Ms Mallon’s employment with Clinical Laboratories as being causative of any injury. Dr Spittaler opined that the injury on 19 December 2011 had led to the start of lumbar disc degeneration with loss of disc height rather than any frank or more recent injury.

20. On 11 May 2020, Dr Harrington opined that Ms Mallon’s current presentation was consistent with the history of four failed back operations. There was evidence of pre-existing changes at the L5/S1 that were asymptomatic prior to the original injury at work on 31 October 2005. Dr Harrington opined that employment was the main contributing factor to the injury and further aggravations at Southern Cross Care. However, he stated that Ms Mallon did not mention any subsequent injury in 2016.

21. On 11 January 2021, Dr Harrington took a history from Ms Mallon that included the nature of her duties with Clinical Laboratories. Dr Harrington opined that, although Ms Mallon described further flare-ups of back pain in the course of her employment with Clinical Laboratories, he believed such flare-ups could be described as temporary aggravations and that such aggravations were not causing incapacity for work. Then, somewhat curiously, he asked Ms Mallon whether she would attribute 50% of her trouble to Southern Cross Care and 50% to Clinical Laboratories, to which she agreed. Dr Harrington then assessed an appropriate apportionment as being 70% attributable to Ms Mallon’s employment with Southern Cross Care and 30% as being attributable to her employment with Clinical Laboratories. He provided no reasoning for the apportionment. Such apportionment was inconsistent with his opinion that the further flare-ups of back pain in the course of Ms Mallon’s employment with Clinical Laboratories could be described as temporary aggravations. I found Dr Harrington’s reasoning in this regard difficult to follow.

22. On 24 December 2020, Dr Hughes opined that Ms Mallon was not suffering from any injury related to her work as a blood collector with Clinical Laboratories, because no specific injury or incident had occurred. Dr Hughes did not consider the question of injury caused by the nature and conditions of Ms Mallon’s employment with Clinical Laboratories. He opined that Ms Mallon’s continuing symptoms of lower back pain and sciatic pain were related entirely to the degenerative disease processes in her lumbar spine and the failed spinal fusion.

23. Dr Hughes did not consider that Ms Mallon suffered an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition arising out of or in the course of her employment with Clinical Laboratories. Any aggravation of the underlying degenerative disc disease of the lumbar spine caused by incidents at work with Southern Cross Care would have been temporary and would have resolved. Ms Mallon’s employment with Clinical Laboratories was not the main contributing factor to any aggravation of the underlying degenerative disc disease of the lumbar spine.

24. In 2005, a CT scan of Ms Mallon’s lumbar spine demonstrated a minimal bulge of the L5/S1 disc without neural compromise. A lumbar MRI scan of May 2014 demonstrated a moderate L5/S1 disc bulge abutting S1 nerves. A lumbar CT scan performed after the onset of severe left leg pain in September 2014, according to Dr Spittaler, appeared to demonstrate a more significant left-sided L5/S1 prolapse.

25. On 18 May 2015, a lumbar MRI scan demonstrated a small broad-based disc bulge without significant neural foraminal or spinal canal stenosis at L4/5 and a moderate L5/S1 disc bulge abutting the traversing S1 nerves bilaterally without evidence of compression.

26. On 29 March 2016, a lumbar MRI scan demonstrated that there remained a small broad-based L4/5 disc bulge without associated canal or neural exit foraminal stenosis and that there remained a broad-based but predominantly central disc extrusion with a narrow neck abutting both traversing S1 nerve roots in the lateral recesses without displacement and a mild bilateral neural exit foraminal stenosis without L5 nerve root exit compromise. Dr Spittaler thought that there was probably a slight increase in the size of the central L5/S1 disc bulge particularly on the left-hand side, although the MRI report suggested no worsening.

27. On 25 July 2016, a lumbar MRI scan demonstrated small posterior disc protrusions at both L4/5 and L5/S1 levels not obviously associated with neural compromise.

28. On 4 May 2018, a lumbar CT scan demonstrated degenerative disc disease at L5/S1 with broad-based disc bulges at L4/5 and L5/S1 with possible impingement of the traversing S1 nerve roots at the L5/S1 level, explaining Ms Mallon’s new symptoms of paraesthesia. The CT Scan was undertaken almost two years after Ms Mallon had ceased work with Clinical Laboratories.

29. On 1 February 2019, a lumbar MRI scan demonstrated multilevel lumbar spondylosis; postsurgical decompression at L5/S1; that the disc herniations at L4/5 and L5/S1 had diminished slightly in size since the study in September 2017; and foraminal stenoses were unchanged.

30. On 22 November 2020, a lumbar MRI scan demonstrated that at L4/5 there was moderate bilateral foraminal narrowing, slightly greater on the right and a minor central disc bulge without overt descending L5 impingement; and at L5/S1 there was a mild central disc bulge without impingement of the descending S1 nerve root and without major foraminal stenosis.

31. The early reports of Dr Bodel and Dr Harrington unequivocally linked causation to Ms Mallon’s employment with Southern Cross Care. It was only in their later reports that the causation waters were muddied by references to temporary aggravations.

32. By the time of his report dated 10 October 2019, Dr Spittaler had seen Ms Mallon in consultation on 26 occasions. As the treating medical specialist, he was in a good position to express the opinion that the incident on 19 December 2011 led to the start of lumbar disc degeneration resulting in loss of disc height rather than any frank more recent injury.

33. I am not satisfied to a degree of actual persuasion or affirmative satisfaction that Ms Mallon suffered an injury to her lumbar spine in the course of her employment with Clinical Laboratories on 24 June 2016 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act by way of a frank injury or the nature and conditions of her employment.

34. I am not satisfied to a degree of actual persuasion or affirmative satisfaction that there was a sudden or identifiable pathological change in the pathology at the L4/5 and L5/S1 levels. The pathology at those levels varied over many years as did Ms Mallon’s symptoms. By reason of the injuries she sustained in the course of her employment with Southern Cross Care, she was left in a vulnerable position exposing her to a greater frequency and duration of recurrences of her waxing and waning symptoms resulting from even the most innocuous subsequent events.

35. In respect of section 4(b)(ii) of the 1987 Act, I am not satisfied to a degree of actual persuasion or affirmative satisfaction that, on an overall evaluation of the evidence, Ms Mallon’s employment with Clinical Laboratories was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the disease process in her lumbar spine.

36. Accordingly, I enter an award in favour of Clinical Laboratories in respect of the claimed injury on 24 June 2016.

Permanent impairment compensation

1. The repeal of section 65(3) of the 1987 Act, allows Commission Members to make determinations of permanent impairment. Neither party submitted that this was an appropriate case for me to determine Ms Mallon’s entitlement to lump sum compensation without referral to a Medical Assessor after having made a determination in respect of injury.

2. Accordingly, it is appropriate that I remit the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment of Ms Mallon’s spine (lumbar spine) and skin (scarring – TEMSKI) as a result of injury arising out of or in the course of her employment with Southern Cross Care on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012.

Weekly benefits and medical and related expenses compensation

1. Following the issue of a MAC by a Medical Assessor, the matter is to be listed for a teleconference before me in respect of the outstanding issues regarding the applicant’s entitlement to weekly compensation and reasonably necessary medical and related expenses as a result of injury with the first respondent on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012 under the 1987 Act.

CONCLUSION

1. My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.